IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO. 7936/2018 BETWEEN:
Darshan.G.R, S/o Ramakrishnaiah, Aged about 20 years, R/at Acharya Building, 100 Feet Road, Near System Bus Stand, Chokkasandra, Nagasandra Post, Bengaluru.
Native Address:
Gollahalli Village, Thumbadi Post, Koratagere Taluk, Tumkur District. ...Petitioner (By Sri.Ashwathkumar.R, Advocate) AND:
State of Karnataka, By Peenya Police Station, Bengaluru.
Rep. by State Public Prosecutor, High Court of Karnataka, Bengaluru – 560001. ... Respondent (By Sri.M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.677/2017(Spl.C.C.No.55/2018) of Peenya Police Station, Bengauru City for the offences punishable under Sections 448, 354, 376 of IPC and Sections 4, 6 and 8 of POCSO Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R The present petition has been filed by the petitioner/accused No.1 under Section 439 of Cr.P.C., seeking to release him on regular bail in Crime No.677/2017 of Peenya Police Station, Bengaluru City registered for the offences punishable under Sections 448 and 376 read with 34 of IPC and under Sections 4, 6 and 8 of POCSO Act, 2012.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that the mother of the victim got married and subsequently her husband was addicted to alcohol. She left him and thereafter she started leaving at Bengaluru, later she got married to one Arun Disoja and her daughter was also residing along with them. On 27.10.2017, complainant and her husband went out to work and her daughter/victim girl who was aged about 14 years was in the house. When the complainant returned to home, she found that victim girl was crying and on enquiry, victim girl revealed that when she was alone in the house, neighbouring persons by name Darshan and a person who is working in Garriage by name Nagaraju that they used to laugh at her and when she heard sound, she came out and at that time the said Nagaraju tried to hug her then she abused him and sent him and closed the door. Thereafter she heard knocking sound of the door and when she opened the door then the accused/petitioner trespassed into the house of the victim girl and hugged her and closed her mouth to prevent her from shouting and she requested the accused/petitioner to leave her, but instead of leaving her, the accused/petitioner took her to the cot and pushed her on the cot and committed penetrative sexual assault on the victim girl. On the basis of the complaint a case has been registered.
4. It is the submission of the learned counsel for the petitioner that earlier accused/petitioner had moved this Court for bail in Crl.P.No.2536/2018 and the same came to be rejected. Now the FSL report has been received and in the said report Seminal stain was not detected. Under the said changed circumstances now he is moving the bail application for fresh consideration. He further submits that there is one day delay in filing the complaint. He further submits that there is contradictory statement given by the victim under Sections 164 and 161 of Cr.P.C. with reference to timing of the alleged incident. He further submits that the trial has not yet been commenced within the stipulated time of one year as per Section 35 of the POCSO Act. The accused/petitioner is languishing in jail and no useful purpose is going to serve and as such he may be released on bail. In order to substantiate his contention he has relied upon the decision of this Court in the case of Paramesha v/s State of Karnataka in Crl.P.No.5346/2015 disposed of on 28.09.2015. He further submits that the accused/petitioner is ready to abide by any conditions that may be imposed on him by this Court and ready to offer surety. On these grounds, he prayed to allow the petition and to release the accused/petitioner on bail.
5. Per Contra, learned High Court Government Pleader vehemently argued and submitted that the accused/petitioner has committed penetrative sexual assault against a minor girl who is aged about 14 years and had trespassed into the house of the victim girl. He further submits that the statement recorded under Section 164 of Cr.P.C corroborates with the medical evidence wherein the medical opinion clearly goes to show that there are signs suggestive of recent vaginal penetration. He further submits that there is ample materials to connect the accused/petitioner to the alleged crime. He further submits that accused/petitioner is residing by the side of the victim girl, if he is released, he may tamper with the prosecution evidence and he may threaten the witness so as not to depose before the Court. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for both the parties and perused the records.
7. It is admitted fact that the accused/petitioner had moved this Court for grant of regular bail in Crl.P.No.2536/2018. This Court after considering merits of the case had dismissed the petition by order dated 07.06.2018. The only changed circumstances on which the accused/petitioner is seeking bail is that the FSL report has been received and in the said FSL report no Seminal stain were detected in Article Nos.1, 2, 3, 4, 5, 6 and 7 and as such that he want to seek bail.
8. I have carefully gone through the said report.
No doubt in the said report Seminal stain was not detected in Article Nos.1, 2, 3, 4, 5, 6 and 7. But immediately after the incident, the victim girl has been taken to the medical examination and on examination of the victim girl the Doctor has opined that there are signs of suggestive of recent vaginal penetration. The statement of the victim recorded under Section 164 of Cr.P.C and the medical report corroborates with each other and it shows that there is recent vaginal penetration that itself amounts to nothing but it is a rape. No Seminal stain were detected that itself is not the criteria for the purpose of connecting the accused/petitioner to the offence under Section 376 of IPC. If there is penetration then it amounts to rape. Under the said facts and circumstances, I feel that it is not a case to release the accused/petitioner on bail. Hence petition stands dismissed.
Sd/- JUDGE NS